Clement: Congress didn't need an invitation

Paul Clement, who served as President George W. Bush’s solicitor general from 2005 to 2008, said Tuesday that Congress should have been more proactive in addressing the problem of how to handle captured suspected terrorists.

“Nothing stopped Congress from getting involved on its own,” Clement said to a group of reporters who gathered at Montpelier, the Virginia home of President James Madison, for a three-day conference on the law and counterterrorism.

Bush has been criticized by folks such as Jack Goldsmith, the former head of the Office of Legal Counsel, who speaks to this conference later today, for doing too much after 9/11 unilaterally, with regard to both military and intelligence. The argument is that overreach by the Bush White House happened when he did not involve Congress in a system for detainees and surveillance, which then prompted decisions by the Supreme Court that have made the executive branch more hamstrung than it was before.

But Clement said that Congress was “the missing branch” in the years following 9/11.

“So much of this was a dialogue between the court and the executive branch,” he said, labeling Congress’ passivity a “damning indictment.”

Some of the journalists here reminded Clement that Congress was controlled by Republicans during this time and kept Democrats from taking any action they might have wanted to.

Clement acknowledged the “political reality” but said that this kind of deference to the executive branch by the legislative, regardless of party control, was not healthy.

“We have a separation-of-powers framework that’s really premised on a powerful Congress,” he said.

He also pointed out that Democrats have not passed an anti-waterboarding statute since recapturing control of Congress in 2006.

Earlier in the morning, Akhil Reed Amar, a constitutional lawyer at Yale, gave a provocative and wide-ranging talk about why America has remained free for more than 200 years when that is “not the natural condition for humanity for most of the planet’s history.”

Amar, who spoke to the conference by video link, argued that geography has had more to do with American freedom than any inherent quality in the American people or its constitutional framework for governance.

Amar said that even Alexander Hamilton argued in Federalist No. 8 that America’s oceans were one of its greatest protectors from foreign powers and that if the Colonies could unite, they could preserve liberty.

“If we can’t create an indivisible nation, then we’ll start fighting each other” just like European countries, he said the argument went.

“Geography may not be sufficient, but I tend to think it’s less about it being in our blood,” Amar said.

Now that international terrorism and cyberwarfare have made borders less protective, Amar said, the U.S. “requires a fundamental rethinking of how liberty is to be protected.”

The only solid idea Amar offered along these lines was a league of democracies to replace the United Nations, which he said is “corrupt” and “irrelevant” and does not have “moral force in the world.”

And maybe just to wake everyone up, Amar, speaking to a group of journalists gathered at Montpelier, called Madison “a failed president.”

“The Capitol burns to ground on his watch. That’s not good,” Amar said. “You’re a failed president when that happens.”